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LUCY v. JONES

October 19, 2004.

CECIL B. LUCY, Plaintiff,
v.
GEORGE JONES, JR. and ADA S. McKINLEY COMMUNITY SERVICES, INC. Defendants.



The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge

ORDER & REPORT AND RECOMMENDATION*fn1

This matter is before the court regarding two motions seeking sanctions against the plaintiff under Rule 37 of the Federal Rules of Civil Procedure. In the first motion, Defendants' Petition for Attorneys' Fees, defendants seek a portion of the fees they incurred to file two motions to compel discovery. The second motion is Defendants' Motion for Dismissal of the Complaint and for Attorneys' Fees and Other Discovery Sanctions. After granting summary judgment in favor of the defendants, the district court denied that sanctions motion as moot to the extent it requested dismissal, but referred the remainder of the motion to this court for a report and recommendation as to whether attorneys' fees or other sanctions under Rule 37 are warranted. As explained more thoroughly below, the court grants Defendants' Petition for Attorneys Fees, but recommends that no additional sanctions be awarded, and thus recommends that the district court deny Defendants' Motion for Dismissal of the Complaint and for Attorneys' Fees and Other Discovery Sanctions. I. BACKGROUND

In December 2003, plaintiff Cecil Lucy sued his former employer defendant Ada S. McKinley Community Services, Inc. ("McKinley") and its executive director George Jones for violations of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. and intentional infliction of emotional distress. According to Lucy, defendants improperly terminated his employment in November 2001 while he was taking a 12 week FMLA leave after the birth of his son. More specifically, Lucy maintains that defendants violated his FMLA rights by failing to provide timely notice of his status as a "key employee" to whom job restoration could be denied under the FMLA, and by failing to reinstate him at the end of his FMLA leave. Lucy v. Jones, 03 C 8688, 2004 WL 1745754, at *1 (N.D. Ill. Aug. 2, 2004). Notably, prior to his termination (but after his FMLA leave commenced), Lucy admitted to defendants that he was doing some consulting work for Operation PUSH on a limited basis during his paid FMLA leave, but denied rumors that he had accepted a position at Operation PUSH and further expressed his intention to return to McKinley. Id. Defendants contend they did not violate the FMLA, explaining they terminated Lucy's employment because they learned that Lucy was working for Operation PUSH during his paid FMLA leave and because they discovered certain performance deficiencies, including Lucy's untimely submission of paperwork that caused McKinley to lose a $381,000 grant.*fn2 Id.

  A central issue in the case was whether, to what extent, and in what capacity Lucy was working for Operation PUSH during his paid FMLA leave. During fact discovery, defendants served interrogatories and document requests seeking to obtain information about Lucy's involvement with Operation PUSH, by asking, e.g., for information about his efforts to seek employment since June 2001, and for information about income or other compensation received from June 2001 through the present, including his tax returns. Lucy objected to those requests as irrelevant and overly broad. Additionally, after Lucy's deposition was scheduled by agreement to be taken on May 4, 2004, Lucy's counsel asked if his deposition could be rescheduled to be taken at night or on a weekend so it would not interfere with Lucy's work schedule. Unable to resolve the discovery disputes, defendants filed two motions to compel.*fn3

  In the first motion, filed May 6, 2004, defendants asked the court (i) to compel plaintiff to provide complete answers to interrogatories and document requests relating to his work for Operation PUSH and his efforts to obtain employment; (ii) to order plaintiff to appear for his deposition; and (iii) to grant attorneys' fees incurred in obtaining the requested court order. In a minute order dated May 7, 2004, the court granted that motion to compel, ordering Lucy to provide interrogatory answers and produce responsive documents by the morning of May 10, 2004, and to appear for deposition that afternoon. In granting the motion, the court did not award fees, however.

  A few weeks later, on May 26, 2004, defendants filed a second, supplemental motion to compel, asserting that Lucy had failed to fully comply with the court's previous orders. Specifically, defendants stated that the tax returns they received were late, incomplete, and illegible. Defendants asked the court to again order Lucy to produce complete tax returns. Defendants also asked the court (i) to reopen Lucy's deposition and order him to answer certain questions he previously had declined to answer based on an accountant's privilege and the spousal communications privilege; and (ii) to compel Lucy to produce certain documents he referenced during his deposition.

  After a hearing on June 2, 2004, the court granted defendants' supplemental motion as it related to the 2001 and 2002*fn4 tax returns.*fn5 The court also granted the motion as it related to the deposition questions Lucy had declined to answer based on the accountant's privilege and the marital privilege, and ordered Lucy to appear for deposition by June 3, 2004 when fact discovery closed. (Minute order dated 6.2.04, docket 24.) The only part of the motion the court denied related to certain documents Lucy referenced at his deposition, because the court concluded the documents in question no longer existed.

  In light of Lucy's continued disregard of his discovery obligations and direct court orders, the court invited defendants to submit a fee petition relating to the two motions to compel, excluding fees relating to the privilege dispute.*fn6 On June 16, 2004, defendants submitted a fee petition requesting $3,118.75 for fees incurred in connection with the motions to compel filed on May 4 and May 26, 2004.

  At the hearing on June 2, 2004, defendants also informed the court that they had just received from Operation PUSH a copy of a written employment agreement between Operation PUSH and Lucy dated September 4, 2001 — just two days before Lucy's paid FMLA leave commenced. The letter agreement, signed by Operation PUSH and Lucy, "reveals Lucy accepted a vice president/chief financial officer position, contingent upon completion of a contract assignment from September 4 to November 12 for a minimum of 15 weekly hours on Tuesdays, Wednesdays, Thursdays and Saturdays." Lucy, 2004 WL 1745754, at *1.

  Later that day, Lucy's attorney notified defendants' counsel that she would be seeking leave to withdraw from the case, and as a result, would not be producing Lucy for his follow-up deposition on June 3rd. On June 3, 2004, defendants filed a motion for summary judgment. The next day, Lucy's counsel filed a motion for leave to withdraw, which the district court granted for good cause shown on June 9, 2004. On June 29, 2004, while their summary judgment motion was pending, defendants filed the motion for dismissal of the complaint and for attorneys' fees and other discovery sanctions. Lucy, who has been acting pro se since his lawyer withdrew on June 9, 2004, filed briefs opposing the motion for dismissal and opposing the motion for summary judgment. He did not, however, oppose the fee petition filed on June 16th.

  On July 30, 2004, the district court granted summary judgment in favor of defendants, finding that Lucy was not protected by the FMLA's job restoration provisions, and that he failed to establish pretext. Lucy, 2004 WL 1745754, at *2. As a result, the district court denied defendants' motion for dismissal and for sanctions as moot to the extent it sought dismissal of the complaint, but referred the remainder of the motion to this court for a report and recommendation as to whether attorneys' fees or other sanctions under Rule 37 are warranted. II. DISCUSSION

  A. Defendants' Petition for Attorneys' Fees

  As mentioned above, defendants seek $3,118.75 for fees incurred in connection with the motions to compel filed on May 4 and May 26, 2004. In submitting the petition, defendants did not delineate which expenses related to obtaining documents such as the tax returns as opposed to which expenses related to the accountant and spousal privilege dispute. Rather, defendants submitted a partial list of attorneys' fees for a total of 10 ½ hours work by two attorneys, accompanied by sworn affidavits from counsel that the submitted expenses represent an accurate, partial listing of attorneys' fees incurred to prepare and present the two motions to compel discovery compliance. According to defendants, in an effort to be reasonable, the fees they requested represent only a portion of the fees actually expended.

  The court has reviewed the summary of the attorneys' time and descriptions of their work, and accepts defense counsel's representation that $3,118.75 is a reasonable estimate of the fees incurred to compel Lucy to comply with his discovery obligations. Further, the court finds that Lucy's behavior during discovery was both unreasonable and obstructive, which is particularly unacceptable not only because he is the one who commenced this lawsuit but because he is a licensed attorney. It should not have been necessary for defendants to obtain a court order to get Lucy to appear for his deposition, nor should it have been necessary for the court to issue multiple orders directing Lucy to turn over complete, legible tax returns. Additionally, by failing to respond to the petition ...


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